Uber's "gig economy" business model is under attack around the world.
by Timothy B. Lee in ars Technica- 2/19/2021, 5:14 PM
The Supreme Court of the United Kingdom has ruled that Uber drivers are legally workers, not self-employed contractors as Uber has argued in courts around the world. The ruling means that drivers in Britain and Northern Ireland are eligible for additional benefits and protections, including a minimum wage.
Uber claims that it merely acts as a technology provider and broker between independent drivers and their customers—much as eBay facilitates sales between buyers and sellers. In Uber's view, this means that it doesn't owe its drivers benefits like unemployment insurance, doesn't need to reimburse drivers for their costs, and isn't bound by minimum wage and overtime rules. Uber emphasizes that its drivers are free to decide when, where, and how much they work.
But critics point out that Uber exerts a lot more control over its drivers—and over the driver-passenger relationship—than a conventional platform like eBay or Airbnb. Uber sets fares, collects payments from customers, deducts its own fee, and remits the remainder to the driver. It requires drivers to accept a large majority of the rides they are offered. It handles customer complaints and kicks drivers off the platform if their average rating falls too low.
“A position of subordination and dependency”
So the UK Supreme Court ruled Friday that Uber drivers are legally Uber workers, not independent business owners who happen to get most of their business from Uber.
“Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill,” said Lord George Leggatt, one of the justices of the Supreme Court, as he handed down the ruling.
One consequence is that Uber drivers must be paid at least the minimum wage. And importantly, the high court held that drivers must be paid not only for the time when they're driving but also for time they're logged in to the app waiting for another fare.
This could have significant implications for Uber's relationship to drivers. While drivers will presumably appreciate a minimum earnings guarantee, this could also mean that Uber will restrict when drivers are allowed to work—since having too many drivers online during periods of low demand could cost Uber more than it earns in fares.
According to the Financial Times, the ruling means Uber must set up a pension program for its drivers. Thousands of drivers could be eligible to sue for back pay as a result of the ruling.
A global battle
In recent years, Uber has been fighting over the same issue in jurisdictions around the world. California passed legislation in 2019 requiring Uber (and Lyft) to treat its drivers as employees. Uber and Lyft fought the law in court for the next year, delaying its implementation until voters overturned it in a November 2020 vote.
According to the Financial Times, UK law has three legal categories—employees, workers, and independent contractors. Workers in the UK have more rights than independent contractors, but not as many as employees. Employment law in the US generally just has two categories—employees and independent contractors.
Last year, France's top court ruled that Uber drivers must be treated as employees. Spanish courts reached a similar conclusion in September. Uber is facing a class-action lawsuit in Canada over the same issue.
Uber is also facing litigation in Massachusetts over the legal status of its drivers.
Of course, Uber may ultimately overturn some of these rulings in the courts or national legislatures, or through referenda. But it seems unlikely that Uber will prevail in all of these fights. Which means that unless Uber wants to abandon broad swaths of hard-won territory, it's going to have to figure out how to make its business model work while treating drivers as employees.
That might mean higher prices for consumers and less flexibility for the drivers. But advocates say that drivers will ultimately benefit from having the same legal protections as most other workers.
I
WROTE the article italicised below in October last
year. I thought that the topic and the approach would make it
suitable for Peace News. It would not be correct to say that
the editor refused to publish it, he simply did not acknowledge it.
Given
the recent ruling by Mr
Justice Julian Knowlesin a case brought by
Harry Miller.
I have included it below this link to
a Guardian
article. In
his ruling Knowles
stressed 'the
vital importance of free speech”,
saying it included “not
only the inoffensive, but the irritating, the contentious, the
eccentric, the heretical, the unwelcome and the provocative.'
In
one of this year’s Reith lectures Jonathan Sumption, who between
2012 and 2018 sat as a member of the Supreme Court, raised the
question of whether the law may be returning to its earlier role as a
means of enforcing social conformity. As instances of how it had
exercised this function in the past he cited the use of the law to
enforce a single pattern of religious worship in the 17th
century and the continued discrimination between denominations into
the 19th century.
To
act as a mechanism for social conformity it is not necessary that
this be exercised by the state, only that the state passes laws which
allow individuals to use the law in a way which forces others to
conform to their views.
In
October of last year a case came before the Supreme Court in which
a Gareth Lee had placed an order for a cake decorated with the words
‘Support
Gay Marriage’.
The owners of the bakery, Daniel and Amy McArthur declined the order
because as Christians they were being expected to express a view that
they disagreed with. Lee argued that they were discriminating
against him because he is a homosexual. Two lower courts had
accepted this argument
but the Supreme Court did not.
The
president of the Court Lady Hale said:
‘It is deeply humiliating
to deny someone a service because of that person’s race, gender,
disability, sexual orientation, religion or belief’.
‘But that is not what
happened in this case. As to Mr Lee’s claim based on sexual
discrimination, the bakers did not refuse to fulfil his order because
of his sexual orientation’.
The
court accepted the argument of the McArthur’s lawyer that forcing
them to bake the cake would be forcing them to go against their
religious beliefs.
Lee was trying to use the
Courts to force the McArthur’s to accept his view of the world. His
mistake was to argue that the couple were being ‘homophobic’ when
they simply had a different view about the world. A view to which he
took exception.
But, as I have argued
previously in Peace News, Lee’s approach is far from uncommon.
Increasingly we see people
who express a view which the listener or reader does not like being
labelled as antisemitic, homophobic, islamophobic, mysoginistic or
some similar pejorative epithet.
The court’s ruling means
that provided we do not discriminate against someone because of what
they ARE, we will not find ourselves in court for expressing our
dissent from the views they hold. In other words such an expression
of dissent is not ‘judiciable’, to use a word which has recently
been rediscovered.
I would not expect to find it
a matter for a court to consider if I decline to call someone who
says they are transgender, ‘she’ or ‘her’, if I sincerely
believe them to be a man. If however referring to such a person as
‘he’ or ‘him’ becomes seen as ‘hate speech’, as some
people wish it to be, then it could be claimed that this is a matter
for the courts.
Commenting
on the ruling in the wedding cake case the chairman of the Equality
and Human Rights Commission said:
‘Freedom of expression –
including the right not to express a view – and freedom of belief
are rightfully protected in a democratic society and this case
demonstrates the need for a more nuanced debate about how we balance
competing rights’.
Debate, nuanced or
otherwise, has been noticeably absent from anything surrounding what
have become known as ‘trans’ issues. Are claims of being cis,
trans, non-binary and gender-fluid simply ephemeral affectations as
some people see them or do they go to the core of an individual’s
being and identity? Unless we are willing to discuss the question we
will never resolve the matter.
If the court refuses to allow the appeal, it will remove the last legal hurdle facing Asia Bibi.
PAKISTAN's Supreme Court will decide on
January 29 whether to allow an appeal against its acquittal of a
Christian woman at the centre of a blasphemy row, a lawyer involved in
the case said on Thursday.
If the court refuses to allow the appeal, it
will remove the last legal hurdle facing Asia Bibi, who is a prime
target in Pakistan and remains in protective custody.
Bibi was on death row for eight years for blasphemy, a hugely sensitive charge.
The Supreme Court's decision in October last
year to overturn her conviction ignited days of violent demonstrations,
with enraged militants calling for her beheading, mutiny within the
powerful military and the assassination of the country's top judges.
The government has since launched a crackdown
on the Tehreek-e-Labaik Pakistan (TLP) party - the militant group
driving the violent protests - charging its leaders with sedition and
terrorism.
But authorities also struck a deal with the
protesters to end the violence, forming an agreement which included
allowing a final review of the Supreme Court's judgement.
On January 29, "the court will determine if
our appeal against her acquittal is admitted", Ghulam Mustafa Chaudhry,
the lawyer who filed the petition seeking an appeal, told AFP.
"Usually the court decides on the same day if the appeal is admitted or not," he added.
Under Pakistan's legal system any private
citizen can petition the courts on any matter of public interest or
human rights, as in the Bibi case.
However legal experts said it would be highly
unusual for the Supreme Court to overturn its own decision, especially
one that as carefully drafted as the Bibi ruling.
"It is very rare," lawyer Saad Rasool told AFP.
The three-member bench that will hear the
petition will be headed by new Chief Justice Asif Saeed Khosa,
considered the country's top expert in criminal law and who helped draft
the decision to acquit Bibi.
Approximately 40 people are believed to be on
death row or serving a life sentence for blasphemy, according to a 2018
report by the United States Commission on International Religious
Freedom.
Speculation has been rife since Bibi's
acquittal that an asylum deal with a European or North American country
may be in the works.
RAHAF
Mohammed al-Nun
is an 18 years old woman who has renounced Islam,
fled Saudi
Arabia,
claims that if she were returned she would be killed, has been
declared a refugee by the United
Nations and
has been granted asylum in Canada.
Asia
Bibi
is 52 years old Pakistani
woman who was on death row for eight years before being declared
innocent of blasphemy by the Pakistan
Supreme Court.
Since
2 November last year she has been in protective
custody to keep her safe from mobs who refuse to accept the verdict
of
the court and
want to
hang
her.
Whilst
Rahaf
has been enabled to start a new life Asia
is still effectively a prisoner separated from her children and her
husband. So why the difference? Why has Rahaf
attracted world wide attention and Asia
been largely forgotten?
There’s
a clue in a long article by Janet
Street-Porter(JSP)
in today’s Independent.
JSP
slants her article so that Rahaf
is to be seen as a woman fleeing from a male dominated society. She
even manages to bring in the 120 or so women at Yarl’s Wood
Immigration Removal Centre who, like Asia Bibi are
separated from their family, as no doubt the men are too. Rahef’s
‘crime’ is to simply want to make decisions about her own life.
Asia
Bibi’s
is to be
a
Christian
in a predominantly Muslim
country. The option she was given was convert to Islam or be tried
for blasphemy. There’s
no ‘feminist’ angle here. It is, or should be, a human rights
issue and deserving of our support for that reason.
There
are two other reasons why these two women have been treated
differently. When Rahaf
reached Canada
she was greeted by a government minister who went on to praise her
countries diplomats. Giving
her asylum will not improve relations between Canada
and Saudi
Arabia.
Pakistan
has close ties with the UK,
but Asia
Bibi
is something of an embarrassment to our
government. The
Foreign
Office
has opposed offering her asylum, though it has been unwilling to go
on the public record as to why it has taken this stance. Some
people have viewed this as a willingness to ‘bend the knee’ to
right wing extremists in Pakistan.I’m
one of them.
The
second reason is the simple fact that Rahaf
has a smartphone and AsiaBibi
does not. In one day Rahaf
acquired 27,000 ‘followers’ on Twitter
with her hashtag #SaveRahaf.
For the Saudis the plight of one young woman had grown to an
international incident overnight.
At
present Asia
Bibi
is an innocent woman being held under what is effectively house
arrest. The president of Pakistan,
Imran
Khan,
has shown himself unwilling to act to make sure she goes free
immediately. Governments treat him with kid gloves in the hope of
keeping him ‘on side’. Saudi
Arabia
pumps money into the country to keep it solvent. There’s
little sign that the Bibi
case will ever‘go
viral’ on Twitter. It
seems being
a Christian
is seriously uncool amongst
the Twitterati.
No
doubt Rahaf’s
story will get an outing in the Sunday papers this weekend and
probably
next
week she’ll feature on Woman’s
Hour.
As
for Asia
Bibi
I’m not holding my breath as I wait for the feministas
tonotice.
No date yet set for review of Asia Bibi case by Pakistan's Supreme Court
THE Pakistani solicitor, Saiful Malook, who successfully fought a long legal struggle to
get Asia Bibi, the Christian woman at the centre of the current high-profile blasphemy case acquited, now says he
will return home to represent her whenever the country's Supreme
Court takes up a review petition against her.
Saiful Malook, who fled in fear for his life to the Netherlands following threats to
him from radical Islamists after the Oct. 21 acquittal of Asia Bibi,
said on Christmas Day that no date has been set by the court to hear
the petition.
This announcement by Malook came as Asia, the 54-year-old mother of five,
celebrated Christmas amid security despite being freed. Bibi had been
on death row since 2010 on charges of insulting Islam's Prophet
Muhammad.
The extemely radical Tehreek-e-Labbaik political party held violent
nationwide protests demanding her public execution after her release.
NEXT
Tuesday the Home Affairs Select Committee is to take evidence on the
prevalence and growth of
far-right extremism in the UK. This
seems like a monumental piece of humbug considering that the Foreign
Office seems to be willing to placate a murderous far-right
group in Pakistan by urging that the British Government refuses
asylum to Asia Bibi who they wish to hang.
The
Foreign Office permanent secretary Sir Simon McDonald told the
Foreign
Affairs
Select
Committee
that he did not wish to give evidence in public and
was allowed to give it in private after the committee went into
closed session.So
decisions are being made in our name that we know nothing about. The
chairman of the committee, Tom Tugendhat, has himself backed the Bibi
family.
I
strongly believe that Asia Bibi ought to have been offered asylum in
this country and as a lifetime Labour voter I am dismayed that I find
myself at odds with the Labour party which
seems
to have been silent on this matter. If
the reason that Labour has held back is out of fear that it will
alienate
Muslim voters in this country then it shames our pretence of being a
liberal democracy. Frankly
I would rather not have a Labour government if it is unwilling to act
with common human decency out of a desire to gain political
advantage.If
Labour has a position on this matter I have yet to hear it.
Individual
MPs have made their position clear. Thirty four of them have signed
an early day motion which reads:
‘That
this House condemns the threats made to Asia Bibi and her family's
lives following her acquittal by the Supreme Court of Pakistan in a
blasphemy trial; recognises that Britain's commitment to freedom of
religious expression, for those of all faiths and none, is one of our
most important values; notes that it is essential that there is
strong international pressure to ensure the Pakistani Government
allows Asia Bibi to leave for a place of safety; and calls on the
Government to immediately extend an offer of unconditional asylum to
her and her family.’
The
silence of so
many
Muslims in Britain is counterproductive. Far from being reassuring it
promotes Islamophobia because it suggests that we do
have something to fear from Islam, unless we are careful in what we
say. Certainly
I do not intend to be lectured by anyone on the evils of Islamophobia
if they have not shown their willingness to support the
right to life of Asia
Bibi, a
womanwho
is described by The
Spectatoras ‘among
the most wronged people on the planet’.
‘Asia
Bibi’s life is in danger in Pakistan, where violent mobs are
calling for her execution following her acquittal by the Supreme
Court in a blasphemy trial. Britain’s commitment to
freedom of religious expression is one of our most important values.
This is especially valued by minority faiths in our society. Its
foundation is respect for the beliefs of others, of all faiths and
none. This country has a long tradition of offering protection,
stretching back to the Huguenots. We should seek to act in this case
too. It is essential that
there is strong international pressure to ensure the Pakistani
government allows Ms Bibi to leave for a place of safety if she
wishes to do so. We call on you to make a clear and proactive
statement, that Britain would welcome a request for sanctuary here.
Many other governments may wish to make a similar offer: we wish to
see our government step up and show leadership. We are confident that
action to ensure Asia Bibi and her family are safe would be very
widely welcomed by most people in Britain, across every faith in our
society. If there are intolerant fringe voices who would object, they
must be robustly challenged, not indulged. The real threat to good
community relationships in Britain would arise from a failure to
stand for and act upon the values we should all share.’
The
last two sentences of this letter are a blueprint for how to tackle
the far right in this country in whatever guise it presents itself. Another
Muslim voice raised in defence of Asia Bibi is Yasmin Alibhai-Brown.
I rarely find myself in agreement with what she writes but in this
case I admire her willingness to tell it as it is: ‘These are
Christians for God’s sake. Two and a half million of them live in
Pakistan – poor, despised, disenfranchised, vulnerable and
violently attacked. Churches have been bombed, and hundreds have
been killed. Vocal egalatarians seemingly never get agitated when
non-Muslims are victimised by the followers of Allah. Tribal
loyalties drive their activism. The rest can go hang.’ https://inews.co.uk/opinion/columnists/asia-bibi-asylum-case-blasphemy-pakistan-sajid-javid/
THERE’s
a pub in Slaithwaite, or ‘Slawit’ as the locals call it, by
the name of ‘The Silent Woman’. I imagine it has
done a roaring trade recently as all feminist journalists and
politicians hide there in case someone should chance to raise with
them the case of Asia Bibi, a Christian woman who has fallen foul of
Pakistan’s draconian, but vague, blasphemy laws.
A
year ago the Twitterati were obsessing about the self
promoting #MeToo
movement; Harriet Harman was in full flow demanding anonymous ‘hot
lines’ so that supposed male miscreants could be ‘outed’and
Clive Lewis was being
pilloried by MPs Stella
Creasy, Yvette Cooper, Jess Phillips, Mims Davies, Justine Greening
and Guardian journalist
Nadia Khomami,
about something he said,
which none of them actually witnessed. More
recently Boris Johnson was being accused of ‘Islamophobia’ for a
comment about some women
wearing burkas.
So
what have this self righteous bunch had to say about the Asia Bibi
case? Not a lot it would seem. Whilst they are keen to promote the
idea that western women are living in fear of walking down the street
in case some man wolf whistles at them, makes some tasteless remark
or just says something they don’t like, a poor Pakistani woman who
has just had her sentence overturned after eight years in
jail with the
prospect of death by
hanging to look forward to, has been abandoned to
her fate by
these supposed liberals.
If
anyone in this world is a victim it is Asia Bibi. She picked up a
drinking cup belonging to a Muslim woman and was accused of
‘polluting’ it simply by being a Christian woman and
hence ‘unclean’. An
argument followed and lead to her being accused of blasphemy. First
she was beaten up by a mob which broke into her house, then
she was charged with
blasphemy, found guilty and sentenced to death. This was upheld by a
higher court. Last week this sentence
was overturned by the
Pakistan Supreme Court which said the women who had made the
accusations against her were lying.
What
followed was that mobs demanding she be hanged rioted for several
days doing what has been claimed to be £900 million of damage.
Imran Khan, the prime
minister, struck a deal
with the rioters that she would no be allowed to leave the country
until the verdict had been ‘reviewed’. Forcing
her to stay in a country where tens of thousands of people want to
kill her is inhumane. Her
lawyer has left the country in fear of his life.
I
am normally very reluctant to resort to the word ‘racism’ to
describe someone’s attitudes or beliefs,but I cannot help
noticing that Asia Bibi is a poor, brown, ‘asian’ woman and the
women who do the shouting about ‘misogyny’ are affluent, white
and western.
The
failure of these women to use their positions to draw the attention
of the British public to Asia
Bibi’s plightis
difficult to explain unless they simply do not care, don’t think it
will raise their profile in circles which will help them in their
career or are afraid that they will be accused of ‘Islamophobia’.
There
is one bit of good news. Heywood and Middleton MP Liz McInnes
has written to the
Minister of State, Mark Field, about this caseand asked
him to
encourage his colleagues at the Home Office to consider the religious
elements of this matter before making decisions on asylum.
A
panel of five judges sitting as the Supreme Court
yesterday gave a ruling which reinforces our right to free speech and
ensures that we cannot be forced to express views that we disagree
with.
The
case revolved around a case where a Gareth Lee had placed an order
for a cake decorated with the words ‘Support Gay Marriage’.
The owners of the bakery, Daniel and Amy McArthur declined the order
because as Christians they were being expected to express a view that
they disagreed with.
Lee
argued that they were discriminating against him because he is a
homosexual. Two lower courts accepted this argument but the Supreme
Court did not.
The
president of the Court Lady Hale said:
‘It
is deeply humiliating to deny someone a service because of that
person’s race, gender, disability, sexual orientation, religion or
belief’.
‘But
that is not what happened in this case. As to Mr Lee’s claim based
on sexual discrimination, the bakers did not refuse to fulfil his
order because of his sexual orientation’.
The
court accepted the argument of the McArthur’s lawyer that forcing
them to bake the cake would be forcing them to go against their
religious beliefs.
Commenting
on this ruling the chairman of the Equality and Human Rights
Commission said:
‘Freedom
of expression – including the right not to express a view – and
freedom of belief are rightfully protected in a democratic society
and this case demonstrates the need for a more nuanced debate about
how we balance competing rights’.
Lee was trying to use the Courts
to force the McArthur’s to accept his view of the world. It was
the action of a bully. His mistake was to argue that the couple were
being ‘homophobic’ when they simply had a different view about
the world. A view to which he took exception.
But as I have argued in another
publication Lee’s approach is far from uncommon.
Increasingly we see people who
express a view which the listener or reader does not like being
labelled as antisemitic, homophobic, islamophobic, mysoginistic or
some similar pejorative epithet.
The courts ruling means that
provided we do not discriminate against someone because of what they
ARE, we will not find ourselves in court for expressing our dissent
from the views they hold. Mr Lee should be happy about this. He can
criticise the views about homosexuality held by some Christians to
his heart’s content safe in the knowledge that he will not find
himself in court for being Christianophobic.
I should say that I have always
been a bit puzzled how some Christians know what God
thinks about homosexuals as to the best of my knowledge he has never
written an autobiography. Perhaps they have just read the wrong sort
of biographies..
THE Supreme Court has ruled today that Parliament must vote on whether the government can start the Brexit process.
This judgement means Theresa May cannot begin talks with the EU until MPs, and peers give their backing - although this is now expected to happen in time for the government's 31 March deadline.
But crucially, the court ruled the Scottish Parliament and Welsh and Northern Ireland assemblies did not need a say.
During the Supreme Court hearing, campaigners argued that denying the UK Parliament a vote was undemocratic and a breach of long-standing constitutional principles.
They said that triggering Article 50 of the Lisbon Treaty - getting formal exit negotiations with the EU under way - would mean overturning existing UK law, so MPs and peers should decide.
The Decision of the Supreme Court
Reading out the judgement, Supreme Court President Lord
Neuberger said: 'By a majority of eight to three, the Supreme Court today
rules that the government cannot trigger Article 50 without an act of
Parliament authorising it to do so.'
He added: 'Withdrawal effects a fundamental change by
cutting off the source of EU law, as well as changing legal rights. The UK's constitutional arrangements require such
changes to be clearly authorised by Parliament.'
The court also rejected, unanimously, arguments that the
Scottish Parliament, Welsh Assembly and Northern Ireland Assembly should get to
vote on Article 50 before it is triggered.
But Nicola Sturgeon has said that the Scottish government will propose legislation allowing Holyrood to have a say in the triggering of Article 50.
The Scottish Problem?
The justices held back from insisting that the devolved administrations would have a vote or a say on the process. That was, as described by a member of Team May, the "nightmare scenario".
The Scottish National Party has said it would not try to veto Brexit, but there is no question that having a vote on Article 50 in the Holyrood Parliament could have been politically troublesome for the government. After the judgement the BBC reported that it seems like an unexploded bomb.
And second, the Supreme Court also held back from telling the government explicitly what it has to do next. The judgement is clear that it was not for the courts but for politicians to decide how to proceed next.
That means, possibly as early as tomorrow, ministers will put forward what is expected to be an extremely short piece of legislation in the hope of getting MPs to approve it, perhaps within a fortnight.
What every student of
constitutional law should know
THE shock some people felt about the decision of the English High Court only
serves to remind us how little attention most English people pay to the nature
of our unwritten constitution.In 1610
following 'The Case of Proclamations' Sir Edward Coke ruled: 'The King hath no prerogative but that which
the law of the land allows him'.
Last week over 400
year later the English High Court has sought to cite that ruling and affirm that
principle with regard to Brexit.
The High Court has now
required that parliament should pass a bill to invoke Article 50.Though the government is now going to appeal
it would be surprising if the Supreme Court would reverse this decision.
Any first-year law
student should know what a leading editorial in the Financial Times' last
Saturday declared:
'It has been found that the government cannot
trigger Article 50, initiating the UK's departure from the EU, without
parliamentary approval.... Brexiters complain that the will of the people is
being subverted.But this is the rule of
law; it is how UK democracy works.'
The government case
had sought to argue that it could use perogative powers deriving from the
concept of the royal prerogative to reverse the decision of the European
Communities Act of 1972 to put the UK into Europe by triggering Article 50 of
the Lisbon Treaty.
The High Court
rejected this argument, deciding that the European Communities Act was designed
'to introduce European Union law into
domestic law'.
For the supporters of
the Leave campaign to now object to this decision of the High Courtis absurd, because it upholds the primacy of
parliament, which is what they have always insisted upon throughout.
THIS Tuesday’s
4-4 deadlock in the US Supreme Court shows that the liberals now have the inniative
over the conservatives in the US justice system.The result this week was brought about by the
death of Justice Antonin Scalia involved the case brought by the public –school
teachers who chose not to join unions and objected to paying for the unions’
collective bargaining activities of their behalf.
The ruling that
went in favour of the teachers’ union would have affected millions of
government workers and weakened the unions in the public sector.Thus the unions would have stood to lose
affiliation fees both from workers who opposed the stand the unions took and from
those who just wanted not to join a union while benefitting from the unions’
efforts on their behalf.
In 2014, the
court stopped just short of overruling a foundational 1977 decision and
declaring that government workers who choose not to join unions may not be
forced to pay fees in lieu of dues.
In the 1977
decision, Abood v. Detroit Board of Education, the Supreme Court made a
distinction between two kinds of compelled payments.Forcing non-members to pay for a union’s
political activities violated the First Amendment, the court said.Yet, it was constitutional, the court added,
to require non-members to help pay for the union’s collective bargaining
efforts to prevent ‘freeloading’ and ensure ‘labour peace’.
The result of
4-4 means that the decision remains open and could be returned to the court in
the near future.
We are publishing a recent press release issued by Public Interest Lawyers (PIL) concerning the recent decision by the supreme court to dismiss the Government's appeal on the 'Back-to-Work' Regulations.
Today
in a landmark decision the Supreme Court has dismissed the Government’s appeal
against the Court of Appeal’s unanimous findings in February that the
Regulations[1] under which most of the
Government’s “Back to Work” schemes were created were unlawful and should be
quashed.
The
original case was brought by our clients Cait Reilly, who was made to stack
shelves in Poundland for two weeks[2], and Jamie Wilson, who
was stripped of his Jobseeker’s allowance for 6 months after refusing to
participate in a scheme[3] which required him to
work 30 hours a week for six months for free.
In
an important judgment the Supreme Court held that:
The
Court of Appeal had been right to quash the Regulations on the basis that the
Secretary of State, Iain Duncan Smith, has acted beyond the powers given to him
by Parliament by failing to provide, any detail about the various “Back to Work”
schemes in the Regulations. (paras
On
the facts of Jamie Wilson’s case he had, in any event, been provided with
invalid notice under the Regulations as the DWP failed to specify the details of
what he was required to do by way of participation in the Back to Work Scheme.
In line with standard notices issued at that time he was merely informed that he
had to do perform “any activities”
requested of him by the private provider, Ingeus. (paras
43-52)
In
relation to a cross-appeal brought by the Claimants, the Court found
that:
Although
the Government does not have a duty to publish a policy about each of its Back
to Work schemes, it is under a duty as a matter of fairness to provide
jobseekers with enough information about the relevant scheme so that they can
make informed and meaningful representations as to whether a scheme is
appropriate before a decision is made. This information must, of course, be
provided before any notice requiring a jobseeker to participate on a particular
scheme is served. Any failure to provide adequate information is likely to
invalidate any notice given making it unlawful for the DWP to require a person
to participate on a scheme and impose benefits sanction if they do not
participate. As a result of this finding we will be seeking the full repayment
of benefits unlawfully stripped from our client Jamie Wilson. (paras 58 –
75)
That
the imposition of the work condition in this case does not fall within the ambit
of Article 4 of the ECHR which protects the right of individuals to be free from
forced labour. (paras 76-90)
The
judgment of the Supreme Court has been complicated because in March 2013 the
Government rushed emergency legislation - The Jobseekers (Back to Work Act) 2013 -
through parliament. This Act retrospectively amended the law and effectively
overturned the Court of Appeal’s judgment. The Supreme Court was moved to
comment in its judgment that this placed the Government in the “rather unattractive” position of “taking up court time and public money to
establish that a regulation is valid, when it has already taken up Parliamentary
time to enact legislation which retrospectively validates the Regulation”
(para 40).
Public
Interest Lawyers have already issued judicial review proceedings challenging the
legality of the retrospective legislation which we will now seek to expedite.[4]
Notwithstanding
the above, the findings of the Supreme Court on the Claimants’ cross appeal were
not academic. The requirement on the DWP to provide jobseekers with adequate
information about the schemes has far reaching implications as all jobseekers
who, like Jamie, were not provided with adequate information will able to seek
the repayment of their benefits. We will also be considering carefully whether
we will appeal the Court’s finding on Article 4 ECHR to the European Court of
Human Rights.
Following
the judgment, Cait Reilly stated:
“I
am really pleased with today’s judgment which I hope will serve to improve the
current system and assist jobseekers who have been unfairly stripped of their
benefits. I brought these proceedings because I knew that there was something
wrong when I was stopped from doing voluntary work in a local museum and instead
forced to work for Poundland for free. I have been fortunate enough to find work
in a Supermarket but I know how difficult it can be. It must be time for the
Government to rethink its strategy and actually do something constructive to
help lift people out of unemployment and poverty.”
Phil
Shiner, head of Public Interest Lawyers said:
“Once
again the Department for Work and Pension’s flagship Back to Work schemes have
been found wanting. Today’s ruling from the Supreme Court is of huge
constitutional and practical significance. My firm will now get on with
challenging, by judicial review, the retrospective legislation which was
shamefully rushed through Parliament by Iain Duncan Smith in March of this
year.”
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